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The Supreme Court LawReview: Osgoode’s Annual
Constitutional CasesConference
Volume 67 (2014) Article 19
The Punishment Agenda in the CourtsDebra Parkes
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Citation InformationParkes, Debra. "The Punishment Agenda in the Courts." The Supreme Court Law Review: Osgoode’s Annual Constitutional CasesConference 67. (2014).http://digitalcommons.osgoode.yorku.ca/sclr/vol67/iss1/19
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The Punishment Agenda in the Courts
Debra Parkes*
I. INTRODUCTION
In a speech to the American Bar Association in 2003, U.S. Supreme
Court Justice Anthony Kennedy said, “When the door is locked against
the prisoner, we do not think about what is behind it. ... Were we to enter
the hidden world of punishment, we would be startled by what we see.”1
In 2011, a decision of that Court startled many Americans by what it
revealed about punishment in California’s prisons. In Brown v. Plata,2 a
majority of the U.S. Supreme Court upheld an injunction that had put the
entire California prison system under a population cap due to evidence of
severe overcrowding, inhumane conditions and utterly inadequate
medical treatment, which violated the Eighth Amendment guarantee
against “cruel and unusual punishment”. Conditions included 200
prisoners incarcerated in a gym with as few as three correctional officers
guarding them, 54 prisoners sharing one toilet, suicidal prisoners being
held for prolonged periods in telephone-booth-sized cages without
toilets, and other horrors. Justice Kennedy, who penned the majority
opinion in Brown, took the rare step of appending photos of some
overcrowded cells and cages in California prisons.3
* Associate Dean (Research and Graduate Studies), Faculty of Law, University of
Manitoba. The author thanks the organizers of the Osgoode Hall Constitutional Cases Conference
for the opportunity to develop and present the ideas contained in this paper. I am grateful to
Benjamin Berger, Lisa Kerr and an anonymous reviewer for insightful comments on an earlier draft.
Thanks are also owed to Rachel Beaupré for her research assistance and the Legal Research Institute
of Manitoba for funding that research. 1 American Bar Association Annual Meeting, “An Address by Anthony M. Kennedy, Associate
Justice, Supreme Court of the United States” (August 9, 2003), online: <http://meetings.americanbar.org/
webupload/commupload/CR209800/newsletterpubs/Justice_Kennedy_ABA_Speech_Final.pdf>. 2 131 S. Ct. 1910 (2011). 3 For a critical perspective on the decision to attach photos to the opinion, see Dahlia Lithwick,
“Show, Don’t Tell: Do photographs of California’s overcrowded prisons belong in a Supreme
Court decision about those prisons?” Slate (May 23, 2011), online: <http://www.slate.com/articles/
news_and_politics/jurisprudence/2011/05/show_dont_tell.1.html>.
590 SUPREME COURT LAW REVIEW (2014), 67 S.C.L.R. (2d)
Shedding light on the hidden world of punishment in Canada can be
an important function of Charter litigation. The panel out of which this
paper arose prompted participants to reflect on changes in interpretation
of the Canadian Charter of Rights and Freedoms,4 the issues and cases
that have prompted those changes, and the potential for the Charter to
address challenging social issues. This paper examines that question in
the context of an intensifying punishment agenda in Canada. I use the
term punishment agenda5 to describe not only an increasing prison
population,6 but more fundamentally, a policy agenda that is based on an
ideology — often in the face of contradictory evidence — that more
punishment (particularly incarceration) will make Canadians safer.7
This paper suggests that Charter litigation by prisoners is valuable as
part of a critical response to that agenda and to redress some of the
concrete harms caused by its policies and practices. Speaking through
their judgments, some judges are becoming the new critics of the
punishment agenda, at a time when academic and community voices are
being ignored in policy debates.8 The paper will begin with a brief
description of some aspects of the punishment agenda before moving on
to consider case law under the section of the Charter that seems to speak
directly to punishment and its limits, the section 12 right to be free from
“cruel and unusual treatment or punishment”. A dominant strand in the
section 12 case law, at least in terms of appellate attention, has been the
minimal impact the section has had in limiting the proliferation of
4 Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.),
1982, c. 11. 5 Criminologist Justin Piché also uses the term in a similar way on his blog, “Tracking the
Politics of Criminalization and Punishment in Canada”: <http://tpcp-canada.blogspot.ca/>. 6 In 2013, the federal prison population reached an all-time high of over 15,000 prisoners
(up from 12,000 a decade earlier): Annual Report of the Office of the Correctional Investigator
2012-2013 (June 28, 2013), online: <http://www.oci-bec.gc.ca/cnt/rpt/pdf/annrpt/annrpt20122013-
eng.pdf>. Provincial jail populations are also expanding at a rapid rate. For example, Manitoba’s
correctional facilities are at 126 per cent capacity and prisoners are being double-, triple- and quadruple-
bunked in cells: Office of the Auditor General of Manitoba, “Managing the Province’s Adult Offenders”,
Annual Report to the Legislature, Chapter 6 (March 2014), online: <http://www.oag.mb.ca/wp-
content/uploads/2014/03/Chapter-6-Managing-the-Provinces-Adult-Offenders-Web.pdf>. 7 Paula Mallea, The Fear Factor: Stephen Harper’s “Tough on Crime” Agenda (Ottawa:
Canadian Centre for Policy Alternatives, 2010). In the U.S. context, see Jonathan Simon, Governing
Through Crime: How the War on Crime Transformed American Democracy and Created a Culture
of Fear (New York: Oxford University Press, 2007). 8 Prime Minister Stephen Harper’s former chief of staff, Ian Brodie, has spoken publicly
about the extent to which ignoring and discrediting academic expertise is a political strategy that has
paid off for the government: John Geddes, “Why Stephen Harper thinks he’s smarter than the
experts” Maclean’s (August 9, 2010), online: <http://www.macleans.ca/news/canada/cracking-
eggheads/> [hereinafter “Geddes”].
(2014), 67 S.C.L.R. (2d) THE PUNISHMENT AGENDA IN THE COURTS 591
mandatory minimum sentences.9 The paper will discuss some of the
recent lower court decisions invalidating mandatory sentences, noting
some interesting developments but also the persistence of deference to
legislatively mandated minimum sentences. Attention will then shift to
another strand of section 12 case law that presents a different kind of
challenge to the punishment agenda, namely, the application of section 12
in the context of prison conditions and the treatment of prisoners.10
The
paper will conclude with some thoughts on the limitations and potential
of Charter litigation in the prison context.
II. THE PUNISHMENT AGENDA
Identifying a contemporary punishment agenda in Canada is not meant
to suggest that Canadian society was previously not punitive. While
Canada’s incarceration rate has been much lower than the world-leading
United States over the last three decades, it has been considerably higher
than that in many European countries.11
Dawn Moore and Kelly Hannah-
Moffatt have described Canada’s criminal justice and correctional system
as having a “liberal veil” over a punitive system.12
In the early 1990s, new
federal corrections legislation was enacted that, for example, committed
corrections to human rights principles, to accommodating diverse
populations, and to using the least restrictive measures consistent with
9 See, e.g., Kent Roach, “Searching for Smith: The Constitutionality of Mandatory
Minimum Sentences” (2001) 39 Osgoode Hall L.J. 367 and Debra Parkes, “From Smith to Smickle:
The Charter’s Minimal Impact on Mandatory Minimum Sentences” [hereinafter “Parkes, ‘From
Smith to Smickle’”] in Benjamin Berger & James Stribopoulos, eds., Unsettled Legacy: Thirty Years
of Criminal Justice under the Charter (Markham, ON: LexisNexis Canada, 2012) 183. 10 This is not to suggest that s. 12 is the most important section for prisoners’ rights
litigation. In fact, s. 7 (particularly in the procedural rights context) and, to a certain extent, s. 15
have been more successfully argued by prisoners and have the potential to address more nuanced
issues beyond clearly inhumane treatment. See Parkes, “A Prisoner’s Charter?” infra, note 30,
at 649-53, 659-60. See also the recent decision in Inglis v. British Columbia (Minister of Public
Safety), [2013] B.C.J. No. 2708, 2013 BCSC 2309 (B.C.S.C.) (cancellation of mother-baby program
in B.C. jail violates ss. 7 and 15 rights). 11 See the World Prison Population Lists compiled by Roy Walmsley, International Centre for
Prison Studies, University of Essex, online: <http://www.prisonstudies.org/research-publications?shs_
term_node_tid_depth=27>. 12 Kelly Hannah-Moffatt & Dawn Moore, “The liberal veil: revisiting Canadian penality” in
John Pratt et al., The New Punitiveness: Trends, Theories, Perspectives (Cullompton, U.K.: Willan
Publications, 2005) 85. The authors contend that the (mostly American) literature describing a
“punitive turn”, focusing as it does on the rise of boot camps, death penalty, chain gangs and
overcrowded prisons, does not adequately take into account the extent to which welfare practices,
therapeutic interventions, and programming that purports to be gender- and culturally sensitive, have
been central to Canadian penality in recent decades.
592 SUPREME COURT LAW REVIEW (2014), 67 S.C.L.R. (2d)
public safety.13
It was meant to be a system that fosters accountability,
providing opportunities for “correcting” the behaviour of law-breakers
who were understood as responsible for their own rehabilitation. The
reality of imprisonment in Canada was often quite different from these
ideals,14
but the liberal veil was largely intact.
However, some of the recent legislative and policy changes are
undeniably and nakedly punitive, such as the sharp increase in number
and length of mandatory minimum sentences for a variety of crimes
(including, most recently, drug offences),15
the abolition of accelerated
early parole for first-time, non-violent offenders,16
and a near-elimination
of the non-carceral conditional sentence of imprisonment,17
which was to
be served in the community on strict conditions. A further example of the
new punishment agenda can be found in changes to the legal regime for
people found not criminally responsible (“NCR”) on account of mental
disorder, including the creation of a new category of “high risk accused”
who face new conditions and punishments in a regime that is meant to be
therapeutic, not punitive.18
There was considerable criticism of these new
punitive measures from academics, legal groups and advocacy groups
working in the criminal justice system for being out of step with the
evidence about what works to reduce crime. However, those criticisms
largely went unheeded as the government adopted an anti-intellectual
stance in an apparent effort to appeal to voters.19
13 Corrections and Conditional Release Act, S.C. 1992, c. 20 [hereinafter “CCRA”]. 14 For example, the year after the enactment of the CCRA, prisoners at the Prison for
Women in Kingston were infamously strip-searched by a male emergency response team in full riot
gear and then placed in illegal segregation for many months, events that were the subject of a wide-
ranging commission of inquiry: Hon. Louise Arbour, Report of the Commission of Inquiry into
Certain Events at the Prison for Women in Kingston (Canada: Public Works and Government
Services, 1996). 15 Safe Streets and Communities Act, S.C. 2012, c. 1 (Royal Assent March 13, 2012). 16 Abolition of Early Parole Act, S.C. 2011, c. 11 (Royal Assent March 23, 2011). 17 Id. 18 Not Criminally Responsible Reform Act, S.C. 2014, c. 6 (Royal Assent April 11, 2014). 19 Geddes, supra, note 8. For example, the evidence of a highly respected criminologist, Anthony
Doob, was dismissed by a parliamentary committee considering one of these bills on the basis that Doob was
an “advocate for criminals”: Heather Scoffield, “Critics of omnibus bill ‘advocate for criminals,’
Conservatives charge” The Globe and Mail (October 18, 2011), online: <http://www.theglobeandmail.com/
news/politics/critics-of-omnibus-bill-advocate-for-criminals-conservatives-charge/article4255428/>.
(2014), 67 S.C.L.R. (2d) THE PUNISHMENT AGENDA IN THE COURTS 593
We have also seen explicit ideological changes in federal
correctional policy. Notably, the 2007 Correctional Service of Canada
Review Panel Report, A Roadmap to Strengthening Public Safety20
and
the subsequent “Transformation Agenda” include a strong focus on
“enhancing offender accountability”, propose eliminating statutory
release (a key feature of the parole system), and do not contain any
mention of human rights principles.21
One of the amendments buried in
one of the many federal crime bills recently passed was a significant
change to the “guiding principles” of federal corrections, namely,
replacing a commitment to “us[ing] the least restrictive measures
consistent with the protection of the public, staff members and offenders”
with a new principle that the measures “are limited to only what is
necessary and proportionate to attain the purposes of this Act”.22
This is
just one example of efforts to explicitly remove “rights” from the
correctional equation. Even rights long considered uncontroversial, such
as that new punishments could not be applied retrospectively, were the
subject of new legislative incursions.23
Other implications of the
punishment agenda are increased prison overcrowding24
notwithstanding
substantial prison expansion and the building of new prisons,25
growing
remand populations,26
increasing over-representation of Indigenous and
racialized prisoners,27
inhumane treatment in the form of long-term
20 Correctional Service of Canada Review Panel, A Roadmap to Strengthening Public Safety
in Canada (Ottawa: Public Works and Government Services, 2007). 21 For a thorough, critical review of the Roadmap, see Michael Jackson & Graham Stewart,
A Flawed Compass: A Human Rights Analysis of the Roadmap to Strengthening Public Safety (September
2009), online: <http://www.justicebehindthewalls.net/resources/news/flawed_Compass.pdf>. 22 Bill C-10, supra, note 15. 23 Section 10(1) of the Abolition of Early Parole Act, S.C. 2011, c. 11 provided that the
abolition of accelerated early parole would apply retrospectively to people who were already serving
their sentences at the time the law came into force. A unanimous Supreme Court of Canada found
this provision invalid in Canada (Attorney General) v. Whaling, [2014] S.C.J. No. 20, 2014 SCC 20
(S.C.C.), for violating the s. 11(h) Charter right against double jeopardy. 24 Office of the Correctional Investigator, Annual Report 2012-2013 (Ottawa: Queen’s
Printer, 2013) [hereinafter “Annual Report”]. 25 Criminologist Justin Piché has compiled on his blog, “Tracking the Politics of
Criminalization and Imprisonment in Canada”, information about the substantial projects and plans
related to prison and jail expansion at the federal, provincial, and territorial level, obtained through
access to information: <http://tpcp-canada.blogspot.ca/2011/09/are-provinces-and-territories-ready-
for.html>. 26 Lindsay Porter & Donna Calverley, “Trends in the Use of Remand in Canada”, Juristat
no. 85-002-X. 27 Annual Report, supra, note 24.
594 SUPREME COURT LAW REVIEW (2014), 67 S.C.L.R. (2d)
solitary confinement, deaths in custody,28
and a culture of impunity
among correctional staff and prison administration.29
In considering whether and to what extent the courts, and specifically
Charter litigation, can act as a check on the punishment agenda, the
section 12 right to be free from cruel and unusual treatment or
punishment comes to mind. It is, of course, not the only relevant Charter
right (sections 7, 11, 15 may, in fact, be equally or more likely to form
the basis for successful challenges in cases dealing with the state’s power
to punish and imprison).30
Nevertheless, while section 12 has had
relatively little impact on penal law and policy to date, it has arguably
become more relevant in recent years and is therefore, the focus of
this paper.
III. SECTION 12 AND THE PUNISHMENT AGENDA
Section 12 of the Charter protects against “cruel and unusual
treatment or punishment”, although the more common language in
international and comparative human rights instruments is that of “cruel,
inhuman, or degrading treatment or punishment”.31
In the Canadian
context, the prohibition against cruel and unusual treatment or punishment
was first found in the 1960 Canadian Bill of Rights,32
but its origin can be
traced to the 1688 English Bill of Rights.33
Michael Jackson describes the
first 15 years of Canadian Bill of Rights jurisprudence as giving very
28 Office of the Correctional Investigator, A Preventable Death (Ottawa: Queen’s Printer,
2009) (on the death of Ashley Smith, who died in her cell with a ligature around her neck while
correctional officers watched). 29 Ombudsman of Ontario, The Code, an investigation of the Ministry of Community Safety
and Correctional Services’ response to allegations of excessive use of force against inmates (June
2013), online: <http://www.ombudsman.on.ca/Investigations/SORT-Investigations/Completed/The-
Code.aspx>. 30 Debra Parkes, “A Prisoners’ Charter? Reflections on Prisoner Litigation Under the
Canadian Charter of Rights and Freedoms” (2007) 40 U.B.C. L. Rev. 629 [hereinafter “Parkes,
‘A Prisoners’ Charter?’”]. 31 Universal Declaration of Human Rights, December 10, 1948, UNGA Res. 217 A(III),
art. 5 and International Covenant on Civil and Political Rights, December 16, 1966, 999 U.N.T.S.
171, art. 7. Similar provisions can be found in provisions that also prohibit torture, including the
European Convention on Human Rights, November 4, 1950, 213 U.N.T.S. 221 and the constitutions
of Brazil, South Africa, and New Zealand. See Jeremy Waldron, “Cruel, Inhuman, and Degrading
Treatment: The Words Themselves” (2008) New York University Public Law and Legal Theory
Working Papers. Paper 98, online: <http://lsr.nellco.org/nyu/plltwp/98>. 32 S.C. 1960, c. 44. 33 (U.K.) 1 Will. & Mar. Sess. 2, c. 2. See Michael Jackson, “Cruel and Unusual Treatment
or Punishment?” (1982) 16 U.B.C. L. Rev. 189 [hereinafter “Jackson”].
(2014), 67 S.C.L.R. (2d) THE PUNISHMENT AGENDA IN THE COURTS 595
limited scope to the provision. For example, in rejecting a challenge to a
punishment of whipping for rape, the Manitoba Court of Appeal stated
in 1965 that “corporal punishment is not unusual in any sense of the
word; in some form or other almost everyone has received it”.34
After surveying the interpretation of the Canadian Bill of Rights
provision in the context of challenges to the death penalty,35
to solitary
confinement,36
and to the mandatory seven-year sentence for importing a
narcotic,37
Jackson argued in 1982 that section 12 should be given
significant meaning and interpretive force in the context of prison
conditions:
The focusing of section 12 of the Charter on prison conditions and
practices would be particularly appropriate given that typically such
practices and conditions are not specifically prescribed by Parliament
but rather are applied through the interpretation of very broadly drafted
legislative provisions which are made specific through administrative
policy making. Judicial monitoring of such practices against the
standard of section 12 would therefore involve the courts not in the
overriding of clearly expressed legislative intention but rather in
the superintendency of decision-making which has always been the
most immunized from public scrutiny.38
More than 30 years of Charter litigation by prisoners have yielded a
few promising decisions,39
but litigation has done relatively little to
enforce prisoners’ rights in the face of abuses and illegality in Canadian
prisons and jails.40
Key limitations are the lack of meaningful access to
the courts by prisoners, as well as deference paid by judges to the
“administrative decision-making” of correctional authorities in the prison
context. In particular, section 12 “has had remarkably little impact in
34 R. v. Dick, [1964] M.J. No. 1, [1965] 1 C.C.C. 171, at para. 18 (Man. C.A.). 35 R. v. Miller, [1976] S.C.J. No. 91, 31 C.C.C. (2d) 177 (S.C.C.). 36 McCann v. Canada, [1975] F.C.J. No. 161, 29 C.C.C. (2d) 337 (F.C.T.D.). 37 R. v. Shand, [1976] O.J. No. 2178, 30 C.C.C. (2d) 23 (Ont. C.A.). This provision was
later declared invalid under s. 12 of the Charter in R. v. Smith, [1987] S.C.J. No. 36, [1987] 1 S.C.R.
1045 (S.C.C.) [hereinafter “Smith”]. 38 Jackson, supra, note 33, at 211. 39 Perhaps the strongest judicial statement of prisoners’ rights can be found in the majority
decision of McLachlin C.J.C. in Sauvé v. Canada (Chief Electoral Officer), [2002] S.C.J. No. 66,
[2002] 3 S.C.R. 519 (S.C.C.), [hereinafter “Sauvé”], holding that a (limited) prisoner voting ban
violated the s. 3 right of prisoner-citizens to vote and could not be saved by s. 1. The Chief Justice
stated that it was constitutionally impermissible for the government to make prisoners “temporary
outcasts from our system of rights and democracy” (at para. 40). 40 Parkes, “A Prisoners’ Charter?”, supra, note 30, at 629.
596 SUPREME COURT LAW REVIEW (2014), 67 S.C.L.R. (2d)
litigation concerning conditions of confinement”.41
Challenges to double-
bunking,42
for example, had been dismissed. However, there had been
relatively few substantive challenges made to prison conditions, due at
least in part to the very limited access to legal aid for prisoner litigation43
and other barriers to mounting such challenges, including short prison
stays, mootness and a relative dearth of lawyers with expertise in prison
law. Before looking more closely at the prison condition cases, it is useful
to examine briefly the area of section 12 case law that has received the
most attention — its application to mandatory sentences of imprisonment.
1. Section 12 as a Limit on Punitive Sentences
With the proliferation of mandatory minimum sentences in recent
years, alongside popular support, there has come substantial criticism
from the academy and the legal profession. On the subject of mandatory
sentences and the Charter, I wrote in 2012:
Much could be (and has been) said about the extent to which
mandatory sentences are bad policy. Their proliferation has been
undertaken by legislators in the face of a massive body of evidence,
accumulated over nearly 50 years, showing that minimum sentences
not only do not deliver on their promise to deter crime but that, in
addition, they have many negative, unintended effects such as fostering
circumvention by justice system participants and reducing transparency
and accountability by pushing discretion down to prosecutors rather
than to sentencing judges. …
We know from the US experience that prosecutorial discretion is
exercised unevenly on the basis of race and that mandatory sentences
create distortions, ratcheting up the “floor” such that sentences become
longer overall, with negative societal returns.44
41 Id., at 659. 42 See, e.g., Piche v. Canada (Solicitor General), [1984] F.C.J. No. 1008, 17 C.C.C. (3d) 1
(F.C.T.D.), affd [1989] F.C.J. No. 204, 47 C.C.C. (3d) 495 (F.C.A.). 43 A 2003 study commissioned by the federal Department of Justice found legal aid
coverage for prisoners in legal aid plans across the country to be woefully inadequate: Department of
Justice Canada, Study of the Legal Services Provided to Penitentiary Inmates by Legal Aid Plans
(Ottawa: Department of Justice, 2002). The study did not include consideration of (essentially non-
existent) funding for prisoner challenges in the provincial context and, in any event, the funding
situation has only worsened in the last decade. 44 Parkes, “From Smith to Smickle”, supra, note 9. See also Scott Bernstein, Throwing Away
the Keys: The human and social cost of mandatory minimum sentences (May 30, 2013) online:
<http://www.pivotlegal.org/throwing_away_the_keys_the_human_and>.
(2014), 67 S.C.L.R. (2d) THE PUNISHMENT AGENDA IN THE COURTS 597
However, as much as critics might wish it to be so, Charter review is
not an investigation into whether a particular law is good policy. The
question, at least under section 12, is whether the law amounts to cruel
and unusual punishment. On that question, appellate courts have been
quite deferential to the legislative decision to enact mandatory sentences.
(a) Mandatory Sentences in the Supreme Court of Canada
R. v. Smith45
was the first decision of the Supreme Court of Canada
to interpret section 12 and it was an important one. The court invalidated
a seven-year mandatory minimum sentence for importation of a narcotic
on the basis that the sentence could be “grossly disproportionate” and
“outrage standards of decency” when applied to the circumstances of a
hypothetical first offender who brought a single marijuana cigarette
across the border.46
In the course of their opinion, Dickson C.J.C. and
Lamer J. stressed that a court considering the constitutionality of a
sentence should look at the effects of the sentence, including the “nature
and conditions under which it is applied”, going on to note, for example,
that a three-year sentence for a property crime would be grossly
disproportionate if served in solitary confinement.47
The post-Smith case law confirmed that section 12 analysis will
proceed in two stages when the constitutionality of a minimum sentence
is challenged. First, the court must consider whether the minimum
sentence amounts to cruel and unusual punishment based on the
circumstances of the individual before the court. If no violation is found
at that stage, then the court will proceed to consider the sentence whether
it would be cruel and unusual (i.e., grossly disproportionate) if applied to
a reasonable hypothetical, which in Smith was the first-time offender
with one joint.
Since Smith, the Supreme Court has declared a punishment to be
“cruel and unusual” in only one other case, despite a number of
challenges having been made.48
In Steele v. Mountain Institution,49
the
45 Smith, supra, note 37. 46 Smith himself had been convicted of importing 7½ ounces of cocaine. 47 Smith, supra, note 37, at para. 57. As will be discussed below, there may be an
increasingly important role for s. 12 to play in imposing constitutional limits on inhumane prison
conditions. 48 R. v. Goltz, [1991] S.C.J. No. 90, [1991] 3 S.C.R. 485 (S.C.C.) [hereinafter “Goltz”]; R. v.
Morrisey, [2000] S.C.J. No. 39, [2000] 2 S.C.R. 90 (S.C.C.) [hereinafter “Morrisey”]; R. v. Latimer,
[2001] S.C.J. No. 1, [2001] 1 S.C.R. 3 (S.C.C.) [hereinafter “Latimer”]. 49 Steele v. Mountain Institution, [1990] S.C.J. No. 111, [1990] 2 S.C.R. 1385 (S.C.C.).
598 SUPREME COURT LAW REVIEW (2014), 67 S.C.L.R. (2d)
Court held that the continued detention of a man who had been
imprisoned for 37 years under an earlier incarnation of a dangerous
offender provision was grossly disproportionate. However, the Court
stressed the particular facts of the case, stating that the test must be
“stringent and demanding” so as not to “trivialize the Charter”.50
In short, the Supreme Court’s approach has been decidedly
deferential to Parliament. The section 12 bar is set very high, requiring
that the sentence be so grossly disproportionate as to “outrage standards
of decency”. A 2007 Supreme Court decision, R. v. Ferguson,51
held that
there is no jurisdiction for a judge to constitutionally exempt an
individual from a mandatory sentence that would amount to a grossly
disproportionate sanction. It has been argued that this decision,
foreclosing the “safety valve” of a constitutional exemption in rare cases,
combined with the proliferation of new mandatory sentences, will
increase the likelihood of confrontations between courts and Parliament
over the validity of mandatory sentences.52
One final Supreme Court of Canada decision on the subject of
mandatory minimum sentences is worthy of note. R. v. Nasogaluak53
involved a serious beating by police of an Indigenous accused, resulting
in broken ribs and a collapsed lung, which were only treated a day after
the arrest when the accused was released from custody. On sentencing
for impaired driving, the defence moved for a stay of proceedings but the
trial judge ordered a reduced sentence — a conditional discharge — on
the basis of the Charter violation. On eventual appeal, the Supreme Court
of Canada held that the Charter breaches could be taken into account to
mitigate sentence but not below a mandatory minimum, other than in
“exceptional circumstances” involving an “egregious” Charter breach.54
And the facts in that case were not considered exceptional.
This brief tour through the Supreme Court case law highlights the
extent to which the provision has operated, in Jamie Cameron’s words, as
50 Id. 51 [2008] S.C.J. No. 6, [2008] 1 S.C.R. 96 (S.C.C.). 52 Benjamin Berger has characterized Ferguson as a “constitutional push-back against the
politics of minimum sentences”: Benjamin L. Berger, “A More Lasting Comfort? The Politics of
Minimum Sentences, the Rule of Law and R. v. Ferguson” in J. Cameron, P. Monahan & B. Ryder,
eds. (2009) 47 S.C.L.R. (2d) 101, at 105 [hereinafter “Berger”]. See also Peter Sankoff, “The Perfect
Storm: Section 12, Mandatory Minimum Sentences, and the Problem of the Unusual Case” (2013)
22 Const. Forum Const. 3. 53 [2010] S.C.J. No. 6, [2010] 1 S.C.R. 206 (S.C.C.). 54 Id., at para. 6.
(2014), 67 S.C.L.R. (2d) THE PUNISHMENT AGENDA IN THE COURTS 599
the Charter’s “faint hope” guarantee,55
applying in only the most
exceptional or egregious cases. It has been given little substantive
content or application, even in cases that would seem to squarely raise
concerns about the limits of punishment but which are instead decided
under section 7.56
The next section considers some recent cases in which
courts are being urged to give section 12 a more substantive application
in response to a raft of new mandatory minimum sentences.
(b) Mandatory Sentences in Recent Lower Court Decisions
With that brief review of the Supreme Court case law, it remains to
consider some of the recent decisions from lower courts across the
country finding certain mandatory sentences to be “grossly
disproportionate” and therefore in violation of section 12. Most of the
successful section 12 challenges deal with mandatory sentences for
firearms offences, most commonly section 95(2), which carries a
mandatory three-year sentence for possession of a loaded firearm when
the Crown proceeds by indictment.57
However, successful challenges
have also been brought against the new mandatory one-year sentence for
possession of a narcotic for the purpose of trafficking when the accused
has a criminal record for drugs,58
the mandatory four-year sentence for
intentionally discharging a firearm into a place knowing that or being
reckless as to whether another person was in that place,59
and the
three-year mandatory sentence for firearms trafficking.60
These are some
55 Jamie Cameron, “Fault and Punishment under Sections 7 and 12 of the Charter” in
J. Cameron & J. Stribopoulos, eds. (2008) 40 S.C.L.R. (2d) 553, at 588 [hereinafter “Cameron”]. 56 See, e.g., R. v. Burns, [2001] S.C.J. No. 8, [2001] 1 S.C.R. 283 (S.C.C.), in which the
Court preferred to deal with the government’s failure to seek assurances that Canadian citizens
would not be subject to the death penalty when extradited as a violation of s. 7 rather than s. 12. 57 R. v. Nur, [2013] O.J. No. 5120, 2013 ONCA 677 (Ont. C.A.), leave to appeal granted
[2014] S.C.C.A. No. 17 (S.C.C.) [hereinafter “Nur”]; R. v. Smickle, [2013] O.J. No. 5070, 2013
ONCA 678 (Ont. C.A.) [hereinafter “Smickle”]; R. v. Charles, [2013] O.J. No. 5115, 2013 ONCA
681 (Ont. C.A.), leave to appeal granted [2014] S.C.C.A. No. 18 (S.C.C.) [hereinafter “Charles”];
R. v. Adamo, [2013] M.J. No. 302, 2013 MBQB 225 (Man. Q.B.) (also finding violations of ss. 7 and
15) [hereinafter “Adamo”]; R. v. Laponsee, [2013] O.J. No. 2834, 2013 ONCJ 295 (Ont. C.J.); R. v.
Vandyke, [2013] A.J. No. 1419, 2013 ABPC 347 (Alta. Prov. Ct.) [hereinafter “Vandyke”]. 58 R. v. Lloyd, [2014] B.C.J. No. 274, 2014 BCPC 8 (B.C. Prov. Ct.). The decision was
overturned on the basis that the Provincial Court has no power to declare a law invalid under s. 52 of
the Constitution Act, 1982 and that, in any event, the one-year sentence was unfit. The Court of
Appeal substituted a sentence of 18 months: [2014] B.C.J. No. 1212, 2014 BCCA 224 (B.C.C.A.). 59 R. v. McMillan, [2013] M.J. No. 324, 2013 MBQB 229 (Man. Q.B.) [hereinafter
“McMillan”]. 60 R. v. L. (C.), [2012] O.J. No. 3094, 2012 ONCJ 413 (Ont. C.J.).
600 SUPREME COURT LAW REVIEW (2014), 67 S.C.L.R. (2d)
of the cases that are working their way to appellate courts and likely, in
some instances, to the Supreme Court of Canada. It is no secret that most
judges do not like mandatory sentences.61
However, few judges are as
direct about their opposition to mandatory sentences on policy grounds
as was Lamoureux J. of the Alberta Provincial Court in the recent
Vandyke decision:
Mandatory minimum penalties do not advance proper sentencing
principles set forth in s. 718 of the Criminal Code, they do not advance
any realistic goal of deterrence, they do not target dangerous offenders
but rather catch in their net a very broad spectrum of citizens.
Mandatory minimum penalties have an egregious impact on the groups
who are already over represented in the Canadian penal system. The
Court agrees wholeheartedly with the representations and submissions
made by the Criminal Justice Section of the Canadian Bar Association
to the standing committee when Bill C-10 was in consideration at the
Committee stage. In a free and democratic society every individual
deserves to be considered as an individual before the Court in a
criminal case.62
Mandatory sentences impose a rigid floor on an exercise that is, at its
heart, individualized and discretionary. They undermine the fundamental
purpose of sentencing, proportionality,63
and are incompatible with the
nature of judgment itself in that they entail a decision in advance about
what is just.64
It is not surprising that, in the face of so many new (and
increased) mandatory sentences, judges have pushed back on mandatory
sentences and other limits on their discretion to craft an individualized,
proportionate sentence.65
The most significant of these decisions to date is R. v. Nur66
and its
companion cases,67
decided by a five-member panel of the Ontario Court
61 See, e.g., Vandyke, supra, note 57. 62 Vandyke, supra, note 57, at para. 24. 63 Criminal Code, s. 718. Note that Bill C-32, the proposed Canadian Victims Bill of Rights,
would amend that provision to stipulate that the “fundamental purpose of sentencing is to protect
society and to contribute, along with crime prevention initiatives, to respect for the law and the
maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of
the following objectives …” (emphasis added). 64 Berger, supra, note 52, at 112. 65 See, e.g., successful constitutional challenges in R. v. Flaro, [2014] O.J. No. 94, 2014
ONCJ 2 (Ont. C.J.) (mandatory victim fine surcharge) and R. v. Beck, [2014] N.W.T.J. No. 20, 2014
NWTTC 9 (N.W.T. Terr. Ct.) (unavailability of enhanced pre-trial credit where the accused is
denied bail due to a criminal record). 66 Nur, supra, note 57.
(2014), 67 S.C.L.R. (2d) THE PUNISHMENT AGENDA IN THE COURTS 601
of Appeal in 2013. However, before discussing the analysis and result in
that case, it is worth highlighting a few of the trial level decisions that
have invalidated mandatory sentences. Those decisions can then be
considered for their consistency (or not) with the approach taken in Nur
and the path we might also expect the Supreme Court of Canada to take.
In R. v. McMillan,68
Menzies J. invalidated a four-year mandatory
sentence for intentionally discharging a firearm into a place knowing that
or being reckless as to whether another person was in that place, contrary
to section 244.2(1)(a) of the Criminal Code. McMillan shot a gun into
the home of an individual by whom he had been bullied. The Court
found that the mandatory minimum sentence was grossly
disproportionate for this young man, who had been bullied extensively in
the community and who had been on extremely strict bail conditions of
house arrest while awaiting trial (which meant that he did not receive any
credit for pre-trial “custody”).
Another interesting decision is R. v. Adamo,69
dealing with the
mandatory three-year sentence for possession of a loaded firearm in
section 95(2), which is considered in Nur and a number of other cases.
Adamo had suffered a brain injury that had left him with a significant
cognitive impairment, memory problems, impulse control and paranoid
ideas consistent with psychosis. Justice Suche found that, in addition to
being grossly disproportionate and therefore a violation of section 12, the
mandatory three-year sentence violated section 7 (as arbitrary, grossly
disproportionate, and overly broad) as well as section 15 (on the basis of
mental disability). Her decision involves some very interesting
arguments that strike at the heart of the logic of mandatory sentences,
including the reality that there is no downward discretion to take into
account diminished mental capacity (short of a mental disorder defence),
for example.
In R. v. Lloyd,70
a B.C. judge declared invalid the mandatory
one-year sentence in section 5(3)(a)(i)(D) of the Controlled Drugs and
Substances Act71
for possession for the purpose of trafficking if the
accused has been convicted of a designated drug offence in the past
67 Smickle, supra, note 57; Charles, supra, note 57; R. v. Chambers, [2013] O.J. No. 5116,
2013 ONCA 680 (Ont. C.A.); R. v. Meszaros, [2013] O.J. No. 5113, 2013 ONCA 682 (Ont. C.A.);
and R. v. Rocheleau, [2013] O.J. No. 5137, 2013 ONCA 679 (Ont. C.A.). 68 McMillan, supra, note 59. 69 R. v. Adamo, supra, note 57. 70 R. v. Lloyd, [2014] B.C.J. No. 145, 2014 BCPC 11 (B.C. Prov. Ct.), revd [2014] B.C.J.
No. 1212, 2014 BCCA 224 (B.C.C.A.). 71 S.C. 1996, c. 19, s. 5(3).
602 SUPREME COURT LAW REVIEW (2014), 67 S.C.L.R. (2d)
10 years. This decision was made on the basis of a hypothetical scenario
put forward by Lloyd, that of an addict who has in his or her possession a
small amount of an illicit drug that he or she intends to share or does
share with a spouse or friend.72
The Court found the mandatory one-year
sentence “grossly disproportionate” in relation to this hypothetical
(although not far-fetched) accused. The judge noted that this kind of drug
sharing happens daily in the downtown east side of Vancouver and that
many of the individuals involved have prior convictions for designated
drug offences.
At issue in Nur was the mandatory three-year sentence for
possession of a loaded firearm (or a firearm with readily accessible
ammunition). The Ontario Court of Appeal declared that mandatory
sentence invalid.73
However, it did so on narrow grounds. Justice
Doherty, writing for the Court, said that this mandatory sentence, along
with the other mandatory sentences for gun crimes, was a “rational
legislative response to the very real public safety concerns”.74
The
problem was only that section 95 casts too wide a net. Justice Doherty
held that the three-year sentence was grossly disproportionate in relation
to a reasonable hypothetical, namely, a licensed gun owner who has an
unloaded firearm and ammunition in a nearby drawer. If he safely stored
that gun at his cottage rather than at his home, as required by his firearms
certificate, he would still trigger the mandatory three-year federal prison
term for what amounts to a “licensing offence”. It was this disconnect
between the regulatory nature of the offence in some (hypothetical) cases
and the three-year penitentiary term that would “outrage standards of
decency” as required for a section 12 violation. Justice Doherty was
quick to differentiate this offence from other firearms offences that
require proof of some other intended or actual unlawful activity,75
and for
which long sentences are implicitly rational. Further evidence of the
appellate Court’s deferential stance is found in Doherty J.A.’s rejection
of the section 7 claim in Nur. That argument was based on the two-year
gap between the maximum summary conviction sentence (one year) and
72 The definition of “traffic” in the Controlled Drugs and Substances Act, s. 2(1) includes
“to give” or “to administer” an illicit drug. 73 A five-year mandatory minimum sentence in s. 95(2)(a)(ii) for a second conviction for
possession of a firearm was also found to violate s. 12 and was declared invalid in the companion
case of Charles, supra, note 57. This result was seen by the Court to flow naturally from the
reasoning in Nur that the mandatory sentence for the first offence was grossly disproportionate in the
case of a reasonable hypothetical. 74 Nur, supra, note 57, at para. 56. 75 Id., at paras. 49-53.
(2014), 67 S.C.L.R. (2d) THE PUNISHMENT AGENDA IN THE COURTS 603
the minimum sentence if the Crown proceeded by indictment (three years)
for this hybrid offence. The reality that this apparent legislative oversight
had produced a situation where no person could receive a sentence for
more than one year but less than three years was held not to meet the
constitutional standard of arbitrariness, in the Court’s view.76
If accepted by the Supreme Court, the high bar set for gross
disproportionality in Nur — focused as the decision was on the
continuum captured by section 95(2) from true crime to regulatory
offence with only the regulatory end raising section 12 concerns — may
not bode well for Charter claims such as those made in McMillan and
Lloyd. Both offences can be characterized as “true crimes”, particularly
section 244.2(1)(a), which involves discharging a firearm in a place
where one is at least reckless as to the potential for people to be present.
The possession for the purpose of trafficking offence in Lloyd does not
have a regulatory end, although it does have a very plausible “less
serious” end as captured in the reasonable hypothetical that had been
accepted in this case. Justice Doherty’s cautious approach and deference
to the legislative choice to pursue mandatory minimum sentences is, in
fact, quite consistent with the deferential approach adopted by the
Supreme Court.
However, it is worth noting that, with the exception of Smith, the
Supreme Court of Canada case law has not considered mandatory
sentences in the context of drug crimes.77
The recent legislative addition
of mandatory sentences for drug offences, including the one at issue in
Lloyd, raises issues relevant to the section 12 inquiry that have not been
addressed in the appellate jurisprudence to date. Intervening before the
British Columbia Court of Appeal in Lloyd, the B.C. Civil Liberties
Association highlighted the extent to which these new mandatory
minimum sentences for drug possession catch low-level, drug-addicted
individuals who are engaged in street-level transactions for small
amounts of drugs.78
In Canada (Attorney General) v. PHS Community
76 In Smickle, supra, note 57. Justice Molloy had found the two-year gap to be wholly
irrational and therefore arbitrary. In R. v. Nur, [2011] O.J. No. 3878, 2011 ONSC 4874 (Ont. S.C.J.),
Code J. had come to a similar conclusion, finding that the gap was created through a legislative
oversight. However, he had dismissed the s. 7 claim on the basis of standing. 77 The Supreme Court of Canada case has focused on firearms offences (e.g., Morrisey,
supra, note 48), homicide (e.g., Latimer, supra, note 48), and driving offences (e.g., Goltz, supra,
note 48). 78 Factum of the British Columbia Civil Liberties Association in R. v. Lloyd, Court of
Appeal File No. CA041594 (May 15, 2014), on file with author.
604 SUPREME COURT LAW REVIEW (2014), 67 S.C.L.R. (2d)
Services Society,79
the Supreme Court of Canada demonstrated an
understanding of the marginalization of injection drug users and the
nature of drug addiction as an illness.80
Pivot Legal Society, also
intervening in the Lloyd appeal, took issue with the limited approach to
gross disproportionality taken by the Ontario Court of Appeal in Nur,
urging that the analysis under section 12 must consider relevant personal
circumstances of individuals subject to mandatory sentencing laws (such
as, for example, their Aboriginal status, drug addiction, parenting
responsibilities, and the like).81
Pivot noted that the hypothetical that
grounded the Smith decision involved a number of personal
characteristics such as age (19 years) and individual circumstances
(returning from spring break in possession of one joint).82
The B.C. Court
of Appeal declined to address the constitutional validity of the mandatory
sentence at issue in Lloyd,83
but these arguments will likely figure
prominently, and will need to be addressed, in future section 12
challenges to the new mandatory sentencing laws.
In relation to both firearms and drug offences, lower court judges
will likely continue to try to chip away at some of the most obvious
injustices in mandatory sentencing laws. However, after Nur, the scope
of that review may be curtailed. The magnitude of the departure from
proportionality required by the section 12 appellate case law suggests
that the section is doing little constitutional work that could not be done
by the principled application of other Charter rights such as the
arbitrariness or gross disproportionality standards in section 7.84
Section 12
came into play in Nur, but only in relation to a hypothetical “exceptional
case” that points to deeper problems with mandatory sentences generally.
This very limited carve-out leaves untouched, and in fact bolsters, the
underlying logic of mandatory sentences.
79 [2011] S.C.J. No. 44, [2011] 3 S.C.R. 134 (S.C.C.). 80 Id., at para. 7. 81 Factum of Pivot Legal Society in R. v. Lloyd, Court of Appeal File No. CA041594
(May 15, 2014), on file with author. 82 Smith, supra, note 37. Pivot factum in Lloyd, id., at para. 18. 83 Lloyd, supra, note 58, holding that the Provincial Court did not have jurisdiction to
declare the impugned law invalid under s. 52 and further finding that the one-year sentence imposed
by the sentencing judge was unfit. A sentence of 18 months was substituted. 84 See generally, Peter Hogg, “The Brilliant Career of Section 7 of the Charter” in
J. Cameron & S. Lawrence, eds. (2012) 58 S.C.L.R. (2d) 195. See also Cameron, supra, note 55, at
592 for an argument that “the section 12 jurisprudence must be released from the constraints of the
gross disproportionality analysis test, which has made it next to impossible for challenges to
mandatory minimums and other departures from individualized justice to succeed” .
(2014), 67 S.C.L.R. (2d) THE PUNISHMENT AGENDA IN THE COURTS 605
2. Section 12 as a Limit on Conditions and Treatment in Prison
Looking beyond the sentencing context, Charter litigation by
prisoners has arguably had the most impact in cases dealing with
procedural rights such as rights to a hearing, information, and/or counsel
in certain situations (transfers to high-security prisons, placement in
segregation, and the like) where “residual liberty” is at stake.85
An
exception to this approach is the Sauvé86
decision of the Supreme Court
of Canada invalidating a prisoner voting ban as an unjustified
infringement of the right to vote guaranteed in section 3 of the Charter.
This 5:4 decision contains strong normative statements about prisoners
as rights holders who are emphatically not, as the Chief Justice says,
“temporary outcasts from our system of rights”.87
However, this case was
about symbolic punishment and therefore, the usual government
arguments about limiting rights to achieve safety and security of the
institution are simply irrelevant. That is a crucial distinction between
Sauvé and the vast majority of prison Charter challenges that do
implicate safety and security and in which there remains a judicial
tendency to accord great deference to correctional authorities.88
With respect to section 12 specifically, it has had relatively little
application in relation to prison conditions. However, this part of the
paper will describe a few recent cases in which prisoners have
successfully argued that they have been subjected to cruel and unusual
punishment, particularly in relation to solitary confinement and other
inhumane practices, and will suggest some potential for further
development of section 12 analysis in this area.
There is a growing awareness internationally that the prolonged use
of solitary confinement (or segregation, as it is termed in the Canadian
legislation) is a pressing human rights issue. An expanding body of
literature shows the lasting psychological and physical effects of solitary
confinement.89
For example, psychiatrist Stuart Grassian, a leading
85 Parkes, “A Prisoner’s Charter?”, supra, note, 30, at 642-49. It is important to note that
while there may be a right to counsel, there is no constitutional right to legal aid: id., at 647. 86 Sauvé, supra, note 39. 87 Id., at para. 40. 88 Parkes, supra, note 30, at 641. 89 Elizabeth Bennion, “Banning the Bing: Why Extreme Solitary Confinement Is Cruel
and Far Too Usual Punishment” (March 15, 2014): <http://papers.ssrn.com/sol3/papers.cfm?abstract_
id=2411845>; Stuart Grassian, “Psychiatric Effects of Solitary Confinement” (2006) 22 Wash. U.J.L. &
Pol’y 325 [hereinafter “Grassian”]; Craig Haney, “Mental Health Issues in Long-Term Solitary and
‘Supermax’ Confinement” (2003) 49 Crime & Delinquency 124.
606 SUPREME COURT LAW REVIEW (2014), 67 S.C.L.R. (2d)
expert on the effects of segregation, has identified “SHU syndrome” in
prisoners who have experienced solitary. They demonstrate increased
sensitivity to stimuli, hallucinations and other changes in perception, as
well as cognitive problems including memory loss, difficulty thinking
and impulsiveness.90
Based on this and other evidence of the damaging
effects of solitary confinement, United Nations Special Rapporteur on
the Convention Against Torture, Juan Mendez, has called for a ban on the
use of solitary for youth and prisoners with mental disabilities, and a
limit of 15 days in solitary for anyone else.91
The widespread and often
prolonged use of solitary in Canadian prisons is clearly inconsistent with
this international human rights benchmark.
In the United States, where over 80,000 prisoners are in solitary, the
widespread practice of indefinite, prolonged segregation is being questioned
by courts and lawmakers. In the summer of 2012, a U.S. Senate Judiciary
Committee held that country’s first ever congressional hearing on solitary
confinement. In the face of lawsuits and compelling evidence of solitary’s
negative effects, a number of states from Mississippi to Maine have radically
reduced their use of solitary confinement and have documented subsequent
drops in violent incidents and overall safer prisons for staff and prisoners.92
In Canada, this issue is not on any legislative agenda, yet the human
costs of solitary confinement are enormous. In 2011-2012, there were
over 87,000 placements in segregation93
in the Canadian federal prison
systems. On any given day there are about 850 federal prisoners in
segregation, meaning that they are locked in a small cell for at least
23 hours per day, usually with no human contact beyond peering through
a meal slot. Only about 16 per cent were “voluntary” placements in the
sense that the individuals sought protective custody out of fear for their
own safety. Just over two per cent were imposed as punishment for
institutional infractions such as mouthing off to a guard or disobeying an
order. All the rest — over 81 per cent — were involuntary placements for
90 Grassian, id. Other studies have found additional psychiatric effects such as suicidal
thoughts, perceptual distortions, chronic depression, emotional flatness and violent fantasies: Haney, id. 91 UN General Assembly, Interim report of the Special Rapporteur of the Human Rights
Council on torture and other cruel, inhuman or degrading treatment or punishment, A/66/268
(August 5, 2011). 92 American Civil Liberties Union, “State Reforms to Limit the Use of Solitary Confinement”,
online: <https://www.aclu.org/files/assets/state_reforms_to_limit_the_use_of_solitary_confinement.pdf>. 93 Ivan Zinger, “Segregation in Canadian Federal Corrections: A Prison Ombudsman’s
Perspective,” presentation at Ending the Isolation: An International Conference on Human Rights
and Solitary Confinement, University of Manitoba (March 22-23, 2013), online: <http://www.oci-
bec.gc.ca/cnt/comm/presentations/presentations20130322-23-eng.aspx>.
(2014), 67 S.C.L.R. (2d) THE PUNISHMENT AGENDA IN THE COURTS 607
“administrative” reasons. Prison officials deemed the isolation necessary
for the “good order” of the institution, often citing safety concerns or
fears for the health of the prisoners (many of whom have mental health
issues, which research shows are exacerbated in solitary94
). In some
cases, such as Ashley Smith’s, women and men spend years in solitary in
a series of segregation placements.
At the level of provincial and territorial imprisonment, due to a lack
of reporting or oversight, the public simply has no information about the
use of solitary confinement in the 13 different correctional systems.
However, what little we know is troubling. For example, documents
received through access to information requests of Manitoba correctional
authorities in 2010 revealed that prisoners in the old Portage Correctional
Center for Women were regularly held in solitary confinement for
reasons not permitted by law, including for “overflow”.95
The 2010 decision of the Supreme Court of British Columbia in
Bacon96
is an example of careful judicial analysis of the actual conditions
and impact of solitary confinement assessed against a constitutional
standard informed by international human rights norms and expert
evidence. Justice McEwan was not prepared to find that solitary
confinement was per se cruel and unusual punishment,97
although he
came close in saying that “[w]hile there is a growing sense
internationally, as well as in Canada, that locking a person down for
23 hours per day is an inappropriate way to treat any human being, the
courts remain tethered to the standard of ‘gross disproportionality’.”98
However, in holding that the conditions of administrative segregation
imposed on a pre-trial detainee amounted to cruel and unusual treatment
or punishment, the Court refused to apply the excessively deferential
standard that is often found in prison cases. Justice McEwan reviewed an
extensive evidentiary record, including the evidence of Dr. Craig Haney,
a leading expert in the United States on the psychological effects of
solitary confinement. In concluding that Bacon’s treatment violated his
section 12 Charter rights, the Court read the decision in Sauvé (the
prisoner voting rights case) as outlining a normative statement of
94 Grassian, supra, note 89. 95 Debra Parkes, “Solitary Confinement of Canadian Prisoners: Normalization and
Suspended Rights” (in progress; on file with author). 96 Bacon v. Surrey Pretrial Services Centre (Warden), [2010] B.C.J. No. 1080, 2010 BCSC
805 (B.C.S.C.) [hereinafter “Bacon”]. 97 R. v. Olson, [1987] O.J. No. 855, 38 C.C.C. (3d) 534 (Ont. C.A.), affd [1989] S.C.J.
No. 7 (S.C.C.). 98 Bacon, supra, note 96, at para. 313.
608 SUPREME COURT LAW REVIEW (2014), 67 S.C.L.R. (2d)
prisoners’ rights mandating careful constitutional scrutiny “unmediated
by the sort of operational and resource considerations that go into the
analysis of a particular standard of treatment”.99
The decision stands as a very strong statement of the right of
prisoners to be free from cruel and unusual treatment or punishment. The
treatment of Bacon in segregation included a number of other arbitrary
deprivations — including, for example, the denial of writing instruments
and visits that caused the prisoner obvious psychological distress. The
Court found this treatment to be “cruelty by any measure”.100
The judge
had strong words for the provincial correctional authorities, which he
said had “seriously lost sight of their responsibility to the judicial
branch”,101
given that prisoners are entrusted to them for lawful custody.
The case is remarkable for two reasons. First, it involved a
substantial evidentiary record, including expert testimony of a leading
expert on the lasting psychological impact of solitary confinement. This
was not a legal aid file102
and, as such, additional resources were
available to marshal the kind of evidence necessary to challenge
correctional expertise.103
Second, the judge did not display the kind of
deference to correctional decision-making that is often seen in prison
cases, including some other recent challenges to solitary confinement.
For example, in R. v. Aziga,104
Lofchik J. stated:
It is recognized that the courts out to be extremely careful not to
unnecessarily interfere with the administration of detention facilities … .
Unless there has been a manifest violation of a constitutionally
guaranteed right, prevailing jurisprudence indicates that it is not
generally open to the courts to question or second guess the judgment
of institutional officials. Prison officials should be accorded a wide
range of deference in the adoption and execution of policies and
practices that in their judgment are needed to preserve internal order
and discipline and maintain institutional security.105
99 Id., at para. 314. 100 Id., at para. 316. 101 Id., at para. 334. 102 Bacon was a high-profile prisoner, facing charges of first degree murder and conspiracy
to commit murder in relation to alleged gang shootings. 103 Lisa Kerr, “Deference, Expertise, and the Possibility of Prisoners’ Rights” (draft
manuscript in progress; on file with author). 104 [2008] O.J. No. 3052 (Ont. S.C.J.) [hereinafter “Aziga”]. 105 Aziga, id., at para. 34 (emphasis added). This passage was cited in full with approval in
R. v. Marriott, [2014] N.S.J. No. 139, 2014 NSCA 28 (N.S.C.A.). See also R. v. Farrell, [2011] O.J.
No. 1813, 2011 ONSC 2160 (Ont. S.C.J.).
(2014), 67 S.C.L.R. (2d) THE PUNISHMENT AGENDA IN THE COURTS 609
In another recent decision, released in March 2014 in the Northwest
Territories, the sentencing judge in R. v. Palmantier106
found that the
conditions of a pre-trial isolation cell experienced by the accused for
132 days while awaiting trial violated section 12. These conditions
included the denial of basic items such as clothing, a shower, running
water, a mattress and bedding. As part of the section 12 analysis,
Schmaltz Terr. Ct. J. cited the various ways in which the prison
conditions violated the norms set out in the United Nations Standard
Minimum Rules on the Treatment of Prisoners.107
It is worth noting that
Palmantier had been a difficult prisoner (resisting officers and, on
occasion, saying that he was going to kill them). There were
understandable safety concerns on the part of the staff and the offences
for which he was being sentenced related to serious incidents with
correctional staff (resisting peace officers, uttering threats and possessing
a weapon). Yet the judge, after hearing evidence from the Deputy
Warden, two correctional officers, the accused and another prisoner,
found the treatment of Palmantier to be “inhumane and uncivilized” and
to “outrage standards of decency”.108
Like Bacon, this decision departs from the pattern of deference to
correctional decision-making often seen in the case law. Of the
correctional authorities’ claims that the denial of necessities such as
clothing, bedding and running water were reasonable in response to the
physical threats posed by Palmantier, Schmaltz Terr. Ct. J. had the
following to say:
I cannot accept hypothetical speculation as to why reasonable
standards cannot be adhered to as a valid reason to disregard
reasonable standards. I refer specifically to not supplying a mattress
because it could be used as a barricade, or even though the mattress is
made of tear proof material, that anything can be torn, or the prisoner
had previously torn a mattress; or the reason for not turning the water
on in the cell because a prisoner may use his or her hand to stop the
drain in the sink, or his or her foot to plug the toilet, and thereby
flood the cell; or not providing appropriate clothing because clothing
can be used as a weapon.
106 R. v. Palmantier, [2014] N.W.T.J. No. 21, 2014 NWTTC 10 (N.W.T. Terr. Ct.)
[hereinafter “Palmantier”]. 107 United Nations, Standard Minimum Rules for the Treatment of Prisoners, Adopted by the
First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at
Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV)
of July 31, 1957 and 2076 (LXII) of May 13,1977. 108 Palmantier, supra, note 106, at paras. 47-48.
610 SUPREME COURT LAW REVIEW (2014), 67 S.C.L.R. (2d)
If standards are not complied with any time one can come up with a
scenario in which compliance may result in a difficult situation, then
the standards are meaningless. If we were to accept such a position,
than the correction authorities could justify never supplying inmates
clothing, toiletries, running water, beds and bedding, towels, cutlery.
As a society we would not tolerate subjecting people to that kind of
treatment, even if they are in custody, it would be inhumane, and “so
excessive as to outrage standards of decency”, and that is the definition
of cruel and unusual treatment. I find the conditions that Mr. Palmantier
was held in to be unacceptable, and amount to cruel and unusual
treatment, and consequently a breach of his right under section 12 of
the Charter.
As I have said before in Firth, I cannot help but wonder how we can
expect a person to behave in a respectful and civilized manner, when
the state, the authorities, subject the person to inhumane and
uncivilized conditions.109
Palmantier received a reduction in his sentence as a remedy for the
violations of his section 12 rights.
A group of prisoners in Alberta were also successful in 2010 in
challenging certain of their conditions of confinement as violations of
section 12. In Trang v. Alberta (Edmonton Remand Centre),110
the judge
declared that the section 12 Charter rights of a number of high-profile
prisoners were breached “as a result of being locked up, two inmates to a
cell, for 18-21 hours a day, with limited access to recreation or other
activities for extended periods of time”.111
The men were in these
conditions for months or, in some cases, years. This treatment was found
to outrage standards of decency. This case was a mixed success in that it
took eight years to reach resolution, the only remedies were simple
declarations of rights violations in relation to the individual prisoners,112
and a number of other Charter claims were denied (including, for
109 Palmantier, id., at paras. 46-48 (citations omitted). In R. v. Firth, [2013] N.W.T.J.
No. 64, 2013 NWTTC 16 (N.W.T. Terr. Ct.), the same judge had found conditions in the “drunk
tank” in Inuvik, N.W.T. to amount to a breach of s. 12. 110 [2010] A.J. No. 31, 2010 ABQB 6 (Alta. Q.B.) [hereinafter “Trang”]. 111 Id., at para. 1157. The Court went on to hold that the men’s s. 12 rights were also
“breached by the ERC’s failure to ensure that underwear was adequately cleaned by the inmate
cleaners or that personal underwear was returned by the inmate cleaners” (at para. 1157). In addition,
there were findings of s. 15 equality violations in the form of racist comments and actions of
correctional staff toward some of the plaintiffs who were Vietnamese. 112 The decision mentions that the conditions of confinement were taken into account in an
earlier decision to stay charges in relation to some of the accused. A civil claim is also still pending.
Personal correspondence with Nathan Whitling, counsel in Trang (April 2, 2014).
(2014), 67 S.C.L.R. (2d) THE PUNISHMENT AGENDA IN THE COURTS 611
example, allegations about inadequate medical and dental care, double-
bunking, and limitations in visits, phone calls, etc.).
In R. v. Aqqiaruq,113
an Inuk man successfully argued that his section 12
rights were violated by the conditions in the RCMP holding cells where
he was detained for 10 days before being transferred to a correctional
centre and subsequently released on a recognizance. The conditions
included being in a cell that had lights on 24 hours per day; being denied
a shower; being provided with a blanket that had blood on it and smelled
of urine; being forced to sleep on the concrete floor because there was
only one mattress and three prisoners in the cell; being placed in a cell
with a man who was accused of killing his cousin; and being denied
prescribed medication at the required times.114
The man’s sentence was
reduced from the four months requested by the Crown to one day and
time served due to the cumulative effect of breaches of sections 12 and 9.
His detention in police holding cells did not meet the requirements of a
“correctional centre” in the relevant statute115
and was therefore unlawful
and arbitrary, contrary to section 9 of the Charter.
These cases indicate that a reduced sentence may be an appropriate
constitutional remedy for conditions of confinement on remand that
violate section 12 or other Charter rights. However, such a remedy
should not be limited to the time of sentencing. In her 1996 Report of the
Commission of Inquiry into Certain Events at the Prison for Women in
Kingston,116
then Justice Louise Arbour recommended that, upon proof
of “illegalities, gross mismanagement or unfairness in the administration
of the sentence”, a judge could order that the length of an existing
sentence be reduced to address the reality that the sentence experienced
by the prisoner was more punitive than the (legal) one intended.117
The case law is clear that something “more than hard time” is
required to find a violation of section 12.118
The standard of “gross
disproportionality” that “outrages standards of decency” applies, but the
successful section 12 claims tend to involve findings that the treatment is
excessive, arbitrary, inhumane or cruel, usually in the context of solitary
confinement or overcrowded pre-trial detention. With the mounting
113 R. v. Aqqiaruq, [2009] Nu.J. No. 28, 2009 NUCJ 26 (Nu. C.J.). 114 Id., at paras. 12-14. 115 Nunavut Act, S.C. 1993, c. 28, incorporating the definition of “correctional centre” in the
Northwest Territories Act. Corrections Service Regulations, R.R.N.W.T. (Nu) 1990, c. C-21. 116 Supra, note 14. 117 Id., at 183. See also R. v. MacPherson, [1996] N.B.J. No. 182, 48 C.R. (4th) 122
(N.B.Q.B.), discussed in Parkes, “A Prisoners’ Charter?”, supra, note 30, at 656. 118 R. v. Chan, [2005] A.J. No. 1118, 2005 ABQB 615 (Alta. Q.B.).
612 SUPREME COURT LAW REVIEW (2014), 67 S.C.L.R. (2d)
evidence of severe and lasting psychiatric effects of solitary confinement,
a court may soon be compelled to find that the practice is per se cruel
and unusual, at least for prolonged or indefinite periods.119
IV. THE POTENTIAL OF PRISONER CHARTER LITIGATION
Numerous reports and commissions of inquiry have pointed to the
need for external oversight of imprisonment to bring practices in line
with constitutional rights and the Rule of Law.120
Canada has refused to
sign the Optional Protocol to the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment,121
which would
require establishing a National Preventative Mechanism to inspect places
of detention and monitor conditions against international human rights
standards.122
With the Canadian prison population at an all-time high and
evidence pointing to a continued upward trend in incarceration, the case
for judicial oversight of places of detention has never been stronger.
At the end of his decision in Trang declaring that certain remand
conditions violated the Charter, Marceau J. observed that
through the eight years this application has wound its way to
conclusion, the fact that the conduct of the administration and staff at
the Edmonton Remand Centre has been under scrutiny has led to many
meaningful improvements. It is important, therefore, that Legal Aid,
where necessary, be available to ensure alleged Charter breaches are
pressed before the Courts.123
119 The UN Special Rapporteur, supra, note 91 proposed a limit of 15 days. In her 1996
Report of the Commission of Inquiry into Certain Events at the Prison for Women in Kingston
(Ottawa: Canada Communication Group, 1996), Justice Louise Arbour recommended that the law be
amended to prohibit anyone being held in segregation for more than 60 days in a calendar year,
whether consecutive or not. 120 Debra Parkes & Kim Pate, “Time for Accountability: Effective Oversight of Women’s
Prisons” (2006) 48 Can. J. Criminology & Crim. Justice 251 (citing, among others, the Arbour
Report, id.). 121 Adopted on December 18, 2002 at the 57th session of the General Assembly of the
United Nations by Resolution A/RES/57/199 entered into force on June 22, 2006. 122 In the United Kingdom, Her Majesty’s Inspectorate of Prisons (“HMI Prisons”)
coordinates the work of 21 arm’s-length bodies that collectively form the National Preventative
Mechanism. HMI Prisons conducts week-long, unannounced, in-depth inspections of all British
prisons within a five-year period. See <http://www.justice.gov.uk/about/hmi-prisons/>. 123 Trang, supra, note 110, at para. 1161.
(2014), 67 S.C.L.R. (2d) THE PUNISHMENT AGENDA IN THE COURTS 613
In Mission Institution v. Khela,124
the Supreme Court of Canada
recently reaffirmed the importance of legal avenues to address rights
violations in prison and other unlawful deprivations of liberty:
Habeas corpus is in fact the strongest tool a prisoner has to ensure that
the deprivation of his or her liberty is not unlawful. In articulating the
scope of the writ in both the Miller trilogy and in May, the Court has
ensured that the rule of law continues to run within penitentiary walls
… and that any deprivation of a prisoner’s liberty is justified.125
Given the growing overcrowding in Canadian prisons and jails, the
mounting evidence of lasting psychological and physical effects of
solitary confinement and other inhumane treatment, Charter litigation
presents a challenge to the punishment agenda, perhaps even more than
litigation focused on mandatory sentences. However, we are currently
seeing more of the latter and less of the former. Reasons for the low
volume of prisoner Charter litigation are many and varied.126
In many
provinces, legal aid funding for prisoner litigation is non-existent or
extremely limited.127
By contrast, funding related to an accused person’s
defence and sentencing is the core of legal aid plans across the country.
Most criminal lawyers are familiar with the trial and sentencing
processes, but unfamiliar with the myriad laws, regulations, policies and
practices of federal and provincial correctional systems. In addition, even
when a strong prisoners’ rights case is marshalled by experienced
lawyers, there are powerful pressures to settle, contributing to a dearth of
case law.128
Some of the cases I have discussed above, along with the annual
reports of the Correctional Investigator, high-profile events such as the
death of Ashley Smith in her segregation cell while guards watched, and
numerous reports and commissions of inquiry, all point to the inhumane
and illegal treatment and conditions of confinement that one can find in
124 [2014] S.C.J. No. 24, 2014 SCC 24 (S.C.C.). 125 Id., at para. 29. 126 Debra Parkes, “A Prisoners’ Charter?”, supra, note 30, at 667-70. 127 For example, in Manitoba there is no Legal Aid funding allocated to prisoner litigation of
any kind. Upon a special application, a test case might receive some minimal funding but it would
likely have to be pursued in partnership with a lawyer acting pro bono. 128 For example, BobbyLee Worm, an Indigenous woman from Saskatchewan who spent
three-and-one-half years in solitary confinement recently settled her lawsuit with the Correctional
Service of Canada. This was a case that a number of lawyers under the coordination of the B.C. Civil
Liberties Association had been preparing for trial: <http://bccla.org/2013/05/media-province-
solitaryconfinement/>.
614 SUPREME COURT LAW REVIEW (2014), 67 S.C.L.R. (2d)
prisons and jails across the country. Conditions in provincial jails,129
remand centres and police lock-ups are, in many contexts, particularly
inhumane and are not on anyone’s legislative agenda to address. The
punishment agenda is intensifying in Canada and judicial scrutiny of
what is actually going on in prisons is crucial to any strategy for resisting
that agenda.
Charter analysis of mandatory sentences tends to focus on, and
accept as effective, abstract principles and objectives of sentencing such
as deterrence, rehabilitation and denunciation, even in the face of
mounting social science evidence that challenges the strength of these
assumptions. For example, a core idea underlying mandatory minimum
sentences — namely that increasing the severity of a sentence will deter
people from committing the crime in question — has been largely
discredited by decades of criminological research.130
Disrupting these
deeply embedded assumptions of the criminal justice system could have
far-reaching consequences that would not be confined to a particular
mandatory sentence at issue in a particular case. Nevertheless, attention
to the contradictions and arbitrariness inherent in mandatory sentencing
laws (i.e., the way that they limit the accountable and transparent
exercise of discretion by judges while expanding the unaccountable and
opaque exercise of discretion by prosecutors) should form part of a
principled Charter analysis.131
But based on the judicial deference often
accorded to Parliament’s decisions to ratchet up minimum sentences,
even in the absence of supporting evidence about the effectiveness of
such measures, challenges to mandatory minimum sentences are unlikely
129 A recent report by the federal Office of the Correctional Investigator of Nunavut’s Baffin
Correctional Centre (“BCC”) paints a particularly disturbing picture of a run-down, overcrowded, mold-
infested facility in which prisoners are forced to share permanently stained underwear. The Report
states: “[BCC] has been grossly overcrowded for many years, and it is now well past its life expectancy.
The current state of disrepair and crowding are nothing short of appalling, and negatively impacts on
both inmates and staff. Cells are overcrowded beyond acceptable standards of safe and humane
custody.” Report of the Office of the Correctional Investigator (Canada) on the Baffin Correctional
Centre and the Legal and Policy Framework of Nunavut Corrections (April 23, 2013) at 6-7, online:
<http://www.justice.gov.nu.ca/apps/UPLOADS/fck/file/Report%20OCI%20on%20NU.pdf>. 130 See, for example, Cheryl Webster & Anthony Doob, “Searching for Sasquatch:
Deterrence of Crime Through Sentence Severity” in Joan Petersilia & Kevin Reitz, eds, The Oxford
Handbook of Sentencing and Corrections (Oxford: Oxford University Press, 2012) 173. 131 Parkes, “From Smith to Smickle”, supra, note 44. For a different argument that would
incorporate an arbitrariness analysis into the disproportionality standard under s. 12, see Allan
Manson, “Arbitrary Disproportionality: A New Charter Standard for Measuring the Constitutionality
of Mandatory Minimum Sentences” in Benjamin Berger & James Stribopoulos, eds., Unsettled
Legacy: Thirty Years of Criminal Justice under the Charter (Markham, ON: LexisNexis Canada,
2012) 207.
(2014), 67 S.C.L.R. (2d) THE PUNISHMENT AGENDA IN THE COURTS 615
to do more than tinker around the edges of sentencing policy, picking off
only the most egregious outlier sentences.
Section 12 Charter litigation that focuses on the actual practices and
conditions of imprisonment not only has the potential to provide a
remedy for very concrete instances of inhumane and otherwise illegal
treatment, it can counteract the tendency to abstract the practice of
imprisonment from its real effects and consequences. Smith called on
judges to consider the “nature and conditions” under which a sentence is
served in assessing its validity against the section 12 standard.132
Cases
about prison conditions put abstract decisions about sentence length into
sharp relief. Most judges will likely continue to be more comfortable
with their jurisdiction to address quantum of sentence rather than
questions about the nature and quality of punishment. However, recent
section 12 cases have put at least some judges in the role of critic of the
punishment agenda, in relation to both mandatory sentences and
inhumane prison conditions. The sentencing process assumes a lot about
imprisonment, including its ability to rehabilitate and deter the people
incarcerated within its walls. Research and litigation to address the facts
of prison conditions and treatment can encourage us to think in more
complex and critical ways about imprisonment as social policy.
132 Smith, supra, note 37, at para. 57.
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